Kiptanui & another (Suing as the Administrators of the Estate of Abraham Kipsang Kiptanui (Deceased)) v Ngetich & 3 others (Environment and Land Case E019 of 2022) [2026] KEELC 4375 (KLR) (9 July 2026) (Ruling)

Kiptanui & another (Suing as the Administrators of the Estate of Abraham Kipsang Kiptanui (Deceased)) v Ngetich & 3 others (Environment and Land Case E019 of 2022) [2026] KEELC 4375 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4375 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case E019 of 2022 CK Yano, J July 9, 2026 Between Mary Jeruto Kiptanui 1st Plaintiff Patrick Kiplagat Kiptanui 2nd Plaintiff Suing as the Administrators of the Estate of Abraham Kipsang Kiptanui (Deceased) and John Kipsang Ngetich 1st Defendant Hillary Kipsang 2nd Defendant Henry Kurui 3rd Defendant Miriam Sote Kipngetich 4th Defendant Ruling 1.The Plaintiffs/Applicants herein filed a Notice of Motion Application dated 2nd January, 2026, against the Defendants/Respondents seeking the following orders that: -1.Spent.2.This Honourable Court be pleased to set aside the judgment delivered virtually in Eldoret Environment & Land Court on 20th November, 2025 by Hon. Justice C.K. Yano as against the plaintiffs pending the hearing and determination of this Application.3.This honourable court be pleased to reinstate the suit herein and the same be listed for hearing in the normal manner on such date as may be ordered by the court.4.This honourable court be pleased to issue a stay of execution of the judgment and all consequential orders therein pending the hearing of this application and main suit.5.The costs of the application be provided for. 2.The application is premised on the 9 grounds on the face thereof and supported by the Affidavit of Patrick Kiplagat Kiptanui, sworn on even date on his own behalf and on behalf of the co-applicant. 3.It is the applicants claim that they instructed the firm of M/s T.K. Rutto & Company Advocates to act on their behalf and have conduct of the matter. That pursuant to the said instructions, the advocate instituted the present suit vide a plaint dated 09.03.2022, seeking orders of permanent injunction from continued acts of trespass against the respondents. 4.They further aver that at all material times, they would inquire about the progress of the matter and their counsel Mr. Tunoi would update them on the steps taken in prosecuting the matter. 5.That they did confirm that when the matter was fixed for hearing on 03.03.2025 and later on 15.10.2025, on both occasions their then advocates on record failed to attend court. That consequently, the plaintiff’s suit was dismissed for non-attendance. It is however their contention that they later learnt that their previous advocate on record had been unwell and on 23.10.2024 was diagnosed with left distal femur Osteosarcoma and was undergoing intensive treatment in India and annexed their advocate’s various medical records and treatment notes from various hospitals as proof of their averments. 6.It is their contention that at all material times they were keen and diligent and were desirous of prosecuting the suit and to protect their proprietary interests in the estate. Thus, it is their argument that the mistakes of counsel should not be visited upon them as their previous advocate’s non-attendance was entirely due to circumstances beyond their control. 7.In view of the same, they urged the court to exercise its discretion by setting aside the dismissal and to reinstate the suit for hearing in the interest of justice, fairness and equity. 8.The application was opposed. The defendants/respondents filed a Replying Affidavit dated 22.04.2026 and sworn by the 4th defendant/respondent. She dismissed the application as being incompetent, incurably defective and amounts to an abuse of the court process. 9.It is her claim that re-opening the matter would extremely prejudice her interest and reiterated that litigation must come to an end. 10.The 4th respondent did depone that the applicants have misled the court on the issue of representation. It is her contention that the firm of T.K. Rutto has never represented them in the matter. 11.Without prejudice to the foregoing, the respondents aver that even though the documents annexed to the supporting affidavit show that Mr. Tunoi was unwell at some point, the applicants have not exhibited any document to show that the advocate was still hospitalized as at 15.10.2025, when the matter had been scheduled for hearing. She thus maintained that the judgment rendered in this matter is a regular judgment. 12.Further, the respondents did contend that no sufficient reason and/or explanation has been tendered by the applicants for their non-attendance on 15.10.2025 despite the hearing date having been taken by consent of all parties. It is their claim that a suit belongs to a litigant and not their advocate. That the litigant therefore holds personal responsibility to actively follow-up on the progress of their case and steps taken. 13.In conclusion, the respondents urged the court to dismiss the application with costs. 14.The Replying Affidavit was duly served upon the applicants. However, on a perusal of the court record, I have not seen any Supplementary or Further Affidavit filed by the applicants in response to the averments raised by the respondents. 15.The application was canvassed by way of written submissions. The applicants filed their submissions dated 02.04.2026 while the respondents filed their submissions dated 12.04.2026 which I have read and considered. Analysis and Determination: 16.I have carefully considered the grounds in the Notice of Motion Application, the Supporting Affidavit and the Replying affidavit as well as the rival submissions thereto and the various authorities cited. Consequently, it is this court’s considered opinion that the following issues arise for determination: -i.Whether the applicants have demonstrated sufficient reasons and/or basis to warrant the setting aside of the Judgment issued on the 20.11.2025.ii.Who should bear the costs of the Application. Whether the applicants have demonstrated sufficient reasons and/or basis to warrant the setting aside of the Judgment issued on the 20.11.2025; 17.It is not in dispute that the plaintiffs’ suit was dismissed on 15.10.2025 for non-attendance. The applicants herein have sought the setting aside of the said dismissal order and for the suit to be reinstated for hearing. 18.Order 12 Rule 7 of the Civil Procedure Rules empowers the court to set aside any judgment or dismissal order made under Order 12. However, this power being discretionary in nature must be exercised judiciously. 19.Order 12 Rule 7 provides as follows: -7.Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just. 20.The applicants herein have premised their application on the illness and incapacitation of their previous advocate on record, Mr. Tunoi. It is their claim that on 23.10.2024, their previous counsel was diagnosed with left distal femur Osteosarcoma and had undergone intensive treatment in India. They have annexed counsel Tunoi’s various medical records and treatment notes from various hospitals as proof of their averments. 21.It is further their contention that even though Mr. Tunoi was discharged from hospital in January, 2025, he was referred to several cycles of chemotherapy. As a result, thereof, it is their claim that the advocate was not in a position to discharge his duties diligently and with consistency, hence his non-attendance on 15/10/2025 when the matter was scheduled for hearing. 22.The applicants have therefore urged the court not to visit the mistakes of their previous counsel on record upon them and maintained that the said non-attendance was occasioned by factors beyond their control and knowledge. 23.The respondents on the other hand have maintained that no sufficient and/or reasonable explanation has been tendered by the applicants to warrant the grant of the orders sought. That from the medical and treatment notes provided by the applicants, nothing shows that as at 15.10.2025, the applicants’ counsel was unwell and incapacitated. 24.Further, it is their contention that the said firm Ms. T.K. Rutto & Company Advocates have never represented the applicants in the present suit. 25.The question that therefore follows is whether the reasons and explanations tendered by the applicants herein is sufficient and just to warrant the setting aside of the judgment of this court dated and issued on 20.11.2025 and reinstatement of the suit for hearing. 26.In the case of Stephen Wanyee Roki v K-Rep Bank Limited & 2 Others (2018) Eklr, the court cited with approval the case of Patel v EA Cargo Handling Services Limited (1974) EA 75 and held as follows:“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules, the principle obviously is that unless and until the court has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.” 27.I have carefully considered the rival arguments by the parties herein and in determining whether or not to exercise my discretion in setting aside the judgment issued on 20.11.2025, I am guided by the decision above. 28.I am aware that the judgment issued on 20.11.2025 in the present case was entered on merit upon a carefully consideration of facts as well as the evidence adduced by the respondents in support of their counter-claim. I have also carefully considered the proceedings of 03.03.2025. On that date, Mr. Matekwa was holding brief for counsel Tunoi for the plaintiffs. He informed the court of Counsel Tunoi’s illness and an adjournment was granted for that reason. Thereafter, Mr. Matekwa and Mr. Korir by consent fixed the matter for hearing of the main suit on 15.10.2025. 29.However, from the documents presented by the applicants and annexed to their supporting affidavit, even though there is nothing to show that as at 15.10.2025 Counsel Tunoi was still incapacitated and could not attend court as scheduled, the documents are sufficient proof of his illness. I will therefore proceed to grant the applicants the benefit of doubt. 30.Besides, as stated hereinabove, on the 03.03.2025, Counsel Matekwa was holding Mr. Tunoi’s brief and there may be a possibility that he inadvertently failed to inform the previous advocate of the scheduled date and therefore the plaintiffs may not have been aware of the hearing date. 31.The principles spelt out in Shah v Mbogo (1967 (EA) 116) were restated by the Court of Appeal in Daqare Transporters Limited v Chevron Kenya Limited [2020] eKLR while considering the discretion of the Court under the provisions of order 12 rule 7 of the Civil Procedure Rules as follows:“The discretion under order 12 rule 7 is exercised so as to avoid injustice as a result of inadvertent or excusable mistakes and errors. Therefore, a court needs to satisfy itself as to whether the reason given by the appellant was excusable…” 32.Thus, guided by the Court of Appeal decision above, the provisions of Article 159 of the Constitution on the need for substantive justice as read with Article 50 on the right to a fair hearing and Order 12 Rule 7, I will proceed to grant the applicants the benefit of doubt and set aside the said dismissal orders. Any prejudice caused on the respondents may be compensated by way of costs. 33.In view of the foregoing, it is the finding of this court that there exists a just and sufficient reason to warrant the setting aside of the dismissal of the plaintiffs’ suit for non-attendance on 15.10.2025 and the judgment of this court delivered virtually on 20.11.2025 so as to have the matter heard and determined on merit upon hearing both parties. Who shall bear the Costs of the Application; 34.The general rule is that costs follow the event unless the court directs otherwise. However, given the circumstances of the case, I will direct each party to bear their costs of the application. Conclusion: 35.In conclusion, it is the finding of this court that the Notice of Motion dated 2nd January, 2026 is merited and is hereby allowed on the following terms:-I.An Order be and is hereby issued setting aside the dismissal order of the plaintiffs’ case for non-attendance issued on 15.10.2025.II.Consequently, an order is hereby issued reinstating the plaintiffs’ suit herein and the same be listed for hearing on priority basis.III.The Judgment of this court issued virtually on the 20th November, 2025 be and is hereby set aside.IV.Each party to bear their own costs of the application. 36.It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 9TH DAY OF JULY, 2026.HON. C.K. YANOJUDGERuling delivered in the presence of: -Mr. Korir for Defendant/Respondents.Mr. Cheboi holding brief for Mr. Limo the Plaintiff.Court Assistant – Laban